Medical Cannabis and Employment

Spring 2019 Print Article

The State of Pennsylvania Three Years After Legalization

Pennsylvania’s Medical Marijuana Act became law on April 17, 2016. In the three years since legalization, the Commonwealth has seen many changes. Grower/processors opened. Dispensaries opened. Doctors were trained and registered. Patients and caregivers received their cards. There have been a few glitches along the way, but overall the system has run well.

The one area that remains a mystery is employment. Despite provisions in the law, patients are concerned about what will happen if they are drug tested. Employers are concerned about employees using medical marijuana. And the law itself is of little help. Let’s look at why that’s the case.

The Law

Twenty-one conditions are now covered under the law. Those conditions are:

• Amyotrophic lateral sclerosis (ALS)
• Anxiety
• Autism
• Cancer
• Crohn’s disease
• Dyskinetic and spastic movement disorders
• Epilepsy
• Glaucoma
• HIV or AIDS
• Huntington’s disease
• Inflammatory bowel disease (IBD)
• Intractable seizures
• Multiple sclerosis (MS)
• Neurodegenerative disorders
• Neuropathies
• Opioid use disorder
• Parkinson’s disease
• Post-traumatic stress disorder (PTSD)
• Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain
• Sickle cell anemia
• Spinal cord nervous tissue damage with objective neurological indication of intractable spasticity
• Terminal illness

Most (if not all) of the conditions may qualify as a disability under the Pennsylvania Human Relations Act (PHRA) if they affect a major life activity of a patient. The PHRA prohibits discrimination on the basis of disability, and disability discrimination charges are to be brought before the Pennsylvania Human Relations Commission (PHRC).

Employers and The Law

Pennsylvania’s medical marijuana law says employers cannot discriminate or retaliate against patients (i.e., anyone who has a covered condition and legally uses medical marijuana) simply because they use medical marijuana. But the law does not require employers to accommodate medical marijuana use at work.

Additionally, the law does not allow patients while their active level of THC is more than 10 ng per milliliter of blood serum (“under the influence”) to be in control of certain dangerous chemicals or to work with high voltage electricity or public utilities. Furthermore, patients “under the influence” of medical marijuana are not to work in confined spaces (such as mines) or at heights, are not to do tasks that the employer believes to be life-threatening, and are not do any task that could result in a public health or safety risk.

The problem is that for all but the first group of prohibitions the term “under the influence is undefined. The vague concept of “under the influence” as it applies to most employees creates a very real problem for patients and their employers. Similarly, the blood test required for the duties with a defined “under the influence” level simply is not easy for employers to measure in patients.

As if all of that weren’t confusing enough, workplace drug testing is permitted, drug-free workplace policies generally are valid, employers can discipline patients whose performance falls below expectations, employers aren’t required to do anything that violates federal law, insurers (including workers’ compensation insurers) aren’t required to pay for medical marijuana, and patients are given no guidance on what’s to be filed if they believe they are the victims of discrimination or retaliation. The medical marijuana law is silent on whether complaints start at the PHRC or in the courts, and the PHRA wasn’t amended to cover protection for patients.

While we wait for guidance from the legislature, administrative agencies, and the courts, here are some suggestions for patients and their employers.

1. REVIEW AND REVISE Employers should review their drug policies to ensure that medical marijuana is addressed. Changes to drug policies or their enforcement should be distributed to employees.

2. EDUCATE Supervisors should be trained by professionals (such as addiction or rehab specialists) to recognize signs of “under the influence” for ALL substances, not just medical marijuana. Alcohol and prescription medication abuse may also be problems among employees. Singling out medical marijuana may prompt charges of discrimination.

3. COMMUNICATE All employees should be aware of their employers’ policies and how they will be enforced. If an employer is unable to permit the use of medical marijuana (e.g., a federal contractor), it should explain to employees why they cannot use medical marijuana. Similarly, if there are jobs or duties that patients cannot perform while under the influence, those jobs or duties should be identified BEFORE the issue arises. This will allow patients and their doctors to make informed decisions about what course of treatment is appropriate for such circumstances. Employers should not require patients to reveal their status unless it is necessary to facilitate discussion about a patient’s job. For example, employees who must have a valid commercial driver’s license (CDL) cannot use medical marijuana because the U.S. Department of Transportation has a zero-tolerance policy. (Marijuana for any use is illegal under federal law.) Employers should develop a procedure for discussing with patients what happens when their treatment contradicts legal restrictions on their jobs. Employers also should develop policies and procedures to address patient drug testing. If the employer’s testing agency will return a positive test even if a patient presents a valid patient card, the employer should be prepared to talk with the patient and handle the situation to avoid discriminatory or retaliatory action.

4. WAIT Much of the uncertainty for patients and their employers is related to a lack of regulations and a lack of charges or cases. It will take time for that uncertainty to resolve. We’ll all be waiting for new regulations or case law to clarify the medical marijuana law. In the meantime, employers and patients are encouraged to talk with qualified attorneys to address issues that arise.

Jean Novak is the co-chair of the Employer-Employee Relations Practice, Strassburger McKenna Gutnick & Gefsky, Pittsburgh, and cochair of the Allegheny County Bar Association Medical Marijuana & Hemp Committee. The comments are hers and do not represent the opinions of Strassburger McKenna Gutnick & Gefsky or the Allegheny County Bar Association. The information contained in this article does not constitute legal advice. Readers are reminded that although medical marijuana is legal in Pennsylvania, marijuana for any purpose remains illegal under federal law. Jean can be reached at [email protected]